Telangana High Court
Tursam Veeraswamy And 8 Others vs Meerbee Jaanbee And 5 Others on 21 February, 2019
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
S.A.No.83 of 2019
JUDGMENT :
This Second Appeal is preferred under Section 100 of the Civil Procedure Code, 1908, challenging the order dt.11.12.2007 passed in A.S.No.26 of 2000 on the file of Principal Senior Civil Judge, at Kothagudem.
2. The appellants herein are legal representatives of defendant nos.1 and 2 in the above suit.
3. The said suit was filed by respondent nos.1 and 2 against defendant nos.1 and 2 and respondent nos.3 and 4 for a perpetual injunction restraining defendant nos.1 and 2 from interfering with their alleged possession and enjoyment of the plaint schedule property.
4. The plaint schedule property is said to be an extent of Acs.8.5 guntas in Survey No.817 of Paloncha Town.
5. Admittedly, the land belongs to the State Government. But plaintiffs / respondent nos.1 and 2 contended that they are landless poor persons who had occupied the said Government land for cultivation purposes, and had been in enjoyment of the same for the previous forty years; that 1st plaintiff's name was mutated in the Revenue Records for only Acs.6.5 guntas, and ryotwari pass book MSR,J ::2:: sa_83_2019 was also issued to him; but defendant nos.1 and 2, who are strangers and have no connection to the plaint schedule land, are trying to trespass into the said land and are interfering with their peaceful possession and enjoyment, and on 06.09.1994, they had tried to occupy the suit schedule land.
6. The defendant nos.1 and 2 filed written statement denying the said allegations and contended that their fathers cleared the bushes in the suit schedule land, made it fit for cultivation forty years back, and they were cultivating the plaint schedule property; that the names of fathers of defendants as well as that of the defendants were recorded in the Revenue Records and they were paying Land Revenue regularly; that the plaintiffs were trying to dispossess them from the suit schedule land; that the 3rd respondent / 4th defendant, i.e., the Government of Andhra Pradesh, filed a written statement contending that the extent of the suit schedule property is only Acs.6.00 gts., and defendant nos.1 and 2 were in possession of only Acs.6.00 gts; that the possession of plaintiffs was not recorded in 'B' Memos since 1991-92, and it is Government land exclusively owned by the State Government; that defendants who are in occupation of Acs.6.00 gts. of land belonging to tribal community were allowed to enjoy the plaint schedule property by the Government since they were tribals; and that the possession of plaintiffs over the suit schedule property was denied.
MSR,J
::3:: sa_83_2019
7. The Court below framed the following issues :
"1. Whether the plaintiffs were in possession of suit schedule property on the date of suit ?
2. Whether the plaintiffs are entitled to permanent injunction as prayed for ?
3. To what relief ?
Additional Reliefs :
1. Whether the extent of the suit schedule land is 6 acres only and not Acs.8.5 gts., as contended by the plaintiffs ?
2. Whether 1st defendant is in possession of 4 acres of land, and defendant no.2 was in possession of 2 acres of land out of 6 acres as contended by defendant no.4 ?
3. Whether the northern boundary and the extent of item No.1 are not correct ?"
8. Before the Trial Court, the plaintiffs examined PWs.1 to 7 and marked Exs.A.1 to A.33. The defendants examined DWs.1 to 6 and marked Exs.B.1 to B.9. Through the State Government witnesses, Exs.X.1 to X.50 were marked.
9. By judgment and decree dt.18.07.2000, the Trial Court decreed the suit against defendant nos.1 and 2, but dismissed it against the State Government.
10. After considering the evidence on record, it held that D.W.3, the Tahsildar, stated that the suit schedule property was in non- Agency area; according to evidence of D.W.3, plaintiffs were in possession of the property from 1979 to 1991; that thereafter, no 'B' MSR,J ::4:: sa_83_2019 Memos were issued to them; the plaintiffs were not claiming any relief against the Government; and the defendants were not able to explain how the names of defendant nos.1 and 2 were entered in the Revenue Records from 1992 onwards, particularly when D.W.3, the M.R.O. had stated that he did not physically verify who was in possession of the suit schedule property, and did not conduct any enquiry or inspection in that regard. It held that as per the evidence of PWs.1 to 6 and D.W.3, the plaintiffs were in possession of the suit schedule property, and defendants' lands appear to be situated in a different place. It held that no proceedings under Section 7 of the Andhra Pradesh Land Encroachment Act, 1905 were initiated against the plaintiffs, and therefore, the plaintiffs were in possession of the suit schedule property, unless they are evicted by due process of law. It also rejected the plea of defendants that the extent of the suit schedule property is only Acs.6.00 guntas, but not Acs.8.5 guntas.
11. Assailing the same, the defendants filed A.S.No.26 of 2000 before the Principal Senior Civil Judge, Kothagudem.
12. Pending Appeal, the defendant nos.1 and 2 died, and their legal representatives were brought on record.
13. The lower appellate Court confirmed the findings of the Trial Court, and held that the plaintiffs did not seek any relief against defendant nos.3 and 4; that Revenue Records indicate possession of the plaintiffs up to 1991, but there is no evidence to prove that MSR,J ::5:: sa_83_2019 subsequent to 1991 they were evicted from the suit land under due process of law, and defendant nos.1 and 2 were inducted into possession of the same. It also referred to the evidence of D.W.2 who stated that he did not have knowledge of boundaries of his Acs.2.00 of land mentioned in the written statement, and he does not know in which bit his land is located. It also referred to his admission that himself and D.W.1 obstructed the plaintiffs from cultivating the suit land in 1994, and D.W.4 admitted that D.1 and D.2 had removed bulls and ploughs of the plaintiffs when they were tilling the disputed land.
14. Assailing the same, the present Second Appeal is filed.
15. It is the contention of counsel for appellants that the suit schedule property fell in the scheduled area and the Civil Suit was not maintainable before the Principal Junior Civil Judge, at Kothagudem. This contention is without any merit, because the M.R.O., who is examined as D.W.3 in the Trial Court, categorically stated in his evidence that the suit schedule property is located in a non-Agency area. Either before the Trial Court or before the 1st Appellate Court, no other material was placed by the appellants to rebut the said evidence. Therefore, this contention raised by the appellants is rejected.
16. The other contention raised by the counsel for appellants is that even prior to the filing of the suit, the appellants alone were in MSR,J ::6:: sa_83_2019 possession of the suit schedule property, and the extent of land claimed by plaintiffs was only Acs.6.00 and not Acs.8.5 guntas.
17. Both the Courts below have held that 'B' Memos were issued to plaintiffs up to 1991, and thereafter there is no evidence to show that the plaintiffs were evicted by due process of law under the Andhra Pradesh Land Encroachment Act, 1905, and defendant nos.1 and 2 were inducted into the land.
18. There is a presumption under Section 114 of the Evidence Act, 1872, Illustration (d) thereof, that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things cease to exist, is still in existence.
19. When the plaintiffs were found to be in possession till 1991, the same state of affairs is presumed to continue unless this presumption is rebutted by the appellants by adducing positive evidence to show that the plaintiffs have been evicted from the suit schedule land, and they were inducted by the Government subsequently.
20. This evidence is lacking.
21. Both the Courts below have correctly appreciated the evidence on record and have given a finding that plaintiffs were in possession of the suit schedule property on the date of filing of the suit, and the said findings cannot be said to be perverse, or based on incorrect appreciation of evidence, or based on no evidence.
MSR,J
::7:: sa_83_2019
22. I therefore do not find any question of Law, much less, any substantial question of law, arising in the Second Appeal.
23. Accordingly, the Second Appeal fails and it is dismissed at the stage of admission. No order as to costs.
24. As a sequel, miscellaneous petitions pending if any in this Second Appeal, shall stand closed.
__________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 21.02.2019 Ndr/*